Section 3: The Law of Torts. Nature of Tort

Transcription

1 P05 Insurance Law Section 3: The Law of Torts Nature of Tort Question 1: What is a tort? Question 2: Note at least 3 examples of torts. Torts and Crimes The same behaviour may result in a crime and a tort. For example a driver who causes an accident may be guilty of a crime such as Driving Without Due Care and Attention. It is also likely that he has committed the tort of negligence. There are however important differences between a crime and a tort. S3 Law of Tort v 1.0 1

2 Question 3: Complete the table below. Civil or criminal courts? Purpose of legal action? Tort Civil Crime To punish offenders who are found guilty of a wrong which is harmful to the interests of society as a whole. Who brings the legal action? The victim (the claimant will see this referred to as the plaintiff in older cases. Who has the burden of proof? What standard of proof must be satisfied? On the balance of probabilities NB: It is not usually necessary for the defendant to disprove the case against him The prosecution usually the Crown Tort and Breach of Contract There can be circumstances in which an act in be both a tort and a breach of contract. For example a plumber who does a poor job replacing old pipework might cause a leak. In not doing the job properly he is likely to be in breach of contract. At the same time, he may well have committed the tort of negligence. Question 4: In our example of the plumber Mrs Smith is the owner of the property. The water leak causes 5000 worth of damage to it. She is able to prove breach of contract and negligence by the plumber. Bearing in mind that the claim could be made in Contract and Tort, how much is she able to claim? S3 Law of Tort v 1.0 2

3 Question 5: A tort is a breach of duty which a person owes to people in general. How does this differ from the duty owed under contract? Damages for breach of contract may be liquidated or unliquidated. In tort damages are always unliquidated. Question 6: What is the difference between liquidated damages and unliquidated damages? Question 7: Liability in tort is usually based in tort. What is the situation in contract? Classification of Torts The law of torts protects the rights and interests of people. If an interest is invaded threatened of harmed then the person affected may seek a legal remedy. Different interests are protected by different torts. Question 8: Complete the table below by noting what interests are protected by each of the torts listed. S3 Law of Tort v 1.0 3

4 Negligence Defamation libel or slander Trespass to the person Trespass to land, private nuisance Copyright or patent design breach. A person claiming in tort generally needs to show that they have suffered a financial loss. Some torts require fault (or negligence). Question 9: Is it necessary to show that a person acted intentionally, negligently, or maliciously for a claim in tort to succeed. Question 10: What is strict liability? Question 11: Contrast the cases of Bradford Corporation v Pickles 1895 with Hollywood Silver Fox Farm Ltd v Emmett (1936) S3 Law of Tort v 1.0 4

5 Trespass Question 12: What are the three forms of trespass? Question 13: What characteristics are shared by all three forms of trespass? Trespass to the person Battery Assault False Imprisonment 3 forms of trespass to the person Question 14: Which form of trespass to the person is being referred to by each of these descriptions. a. The hostile application of physical force. b. Total bodily restraint of a person that prevents them from going where they want to go. S3 Law of Tort v 1.0 5

6 Question 15: In the case of Tuberville v Savage (1669) why was an apparent threat with a sword not deemed to be an assault? Question 16: In the case of Meering v Graham-White Aviation Co Ltd, why was Meering able to successfully claim for damages? Trespass to Goods This occurs when a person directly and Intentionally interferes with goods that are possessed by another person. Question 17: These three cases are all examples of interference of goods. What was being interfered with in each case and how was this done? Heydon v Smith (1610) Wright v Ramscott (1667) Hamps v Derby (1948) Question 18: Conversion is a form of trespass of the person. What is conversion? S3 Law of Tort v 1.0 6

7 Question 19: What collective description was introduced by the Torts (Interference with Goods) Act 1977? Trespass to Land Question 20: What are the three forms of trespass to land? Question 21: Liability is strict and trespass to land is actionable per se. Why do you think that this is the case? Question 22: The case of Smith v Stone (1647) is an example of Unlawfully placing or throwing material on to the land of another. a. What was the unusual material object thrown on to the land? b. What other form of trespass may also have been committed? Question 23: In the Six Carpenters Case (1610) why were the men held to be trespassers ab initio despite the fact that they had originally entered premises lawfully. S3 Law of Tort v 1.0 7

8 Question 24: In the case of Harrison v Duke of Rutland (1893), Harrison sued the Duke for trespass of the person. But what was the outcome of the case? Question 25: In the case of Davies v Bennison (1927), what two types of trespass were held to have taken place? Question 26: How does the Civil Aviation Act 1982 relate to the law of trespass? Trespass and Insurance The tort of trespass has limited relevance to insurance. However, some policies do cover the risk of trespass to land or goods. Question 27: Why do you think that trespass is not widely covered by insurers? Negligence Negligence is the tort most frequently encountered by insurers, so it is important to understand it. Question 28: Negligence was defined in the case of Blyth v Birmingham Waterworks (1856). Make a note of that definition here. S3 Law of Tort v 1.0 8

9 Question 29: What are the three essential elements that are required for an action in negligence to succeed? Duty of Care Question 30: The test for the duty of care was established in the case of Donoghue v Stevenson (1932). a. What were the circumstances of the case? b. What did the court decide? c. What principle was established by the case? Breach of Duty Question 31: We have seen from the definition in Blyth v Birmingham Waterworks that we are judged by the standards of a reasonable man. What does this mean? S3 Law of Tort v 1.0 9

10 Question 32: A driver crashes into a parked car but claims that he has not been negligent because he is just a learner driver. Would this defence succeed? Question 33: A junior doctor was liable for negligent treatment which injured a premature baby He was judged by the standards of his profession and his inexperience was not a valid defence. Which case was this? Damage Any degree of damage can be actionable in negligence unless it is very trivial. Question 34: What forms of damage may be claimed in negligence. Remoteness of Damage There is some limit on the liabilities of a negligent person. Damage must be a direct and foreseeable consequence of the breach of duty. Damage that is too remote or is not reasonably foreseeable will not result in a successful claim. The principle that damage has to be foreseeable was established in Overseas Tankship (UK) Ltd v Mort s Dock and Engineering Co Ltd (1961) the case is better known as the Wagon Mound (1961) S3 Law of Tort v

11 Question 35: Make notes on the Wagon Mound (1961 What were the facts of the case? Despite the fact that the men were negligent the claim failed. Why? Question 36: Why did the claim in negligence made in Smith v Leech Brown and Co Ltd (1961) succeed when the Wagon Mound case did not? Negligent Misstatement Until 1963 there was no liability for negligent words or negligent advice, just for negligent acts or omissions. It meant that people who got bad advice from professional people could only sue in contract. People who were not a party to the contract but who were affected by the advice could not sue at all. The House of Lords decision in Hedley Byrne v Heller and Partners (1963) changed this situation. S3 Law of Tort v

12 Question 37: Make notes on the Hedley Byrne v Heller and Partners (1963). What were the facts of the case? The claim failed but what would have happened if the bank had not disclaimed responsibility in the document? Question 38: What three elements need to be present for a claim in negligent misstatement to succeed? Economic Loss Where a negligent act causes damage it is often accompanied by economic loss and the claimant can usually claim successfully for this. However, cases involving economic loss but no physical damage are a different matter. This is known as pure economic loss and it is generally not possible to claim for this. S3 Law of Tort v

13 Question 39: Make notes on the Weller v Foot and Mouth Disease Research Institute (1966). What were the facts of the case? Why did the claim made by the auctioneers fail? Question 40: In case Spartan Steel and Alloys v Martin and Co (Contractors) Limited(1nts973) the defendants negligently cut through an electricity cable that served the claimants factory. This interrupted the power supply for 15 hours. The claimants claimed for the following: a. Metal in their furnaces was damaged reducing its value by 368 b. The profit they would have made on the metal that was ruined c. The profit they would have made on other metal that they would normally have processed during the time the power was interrupted What did the court decide? Question 41: How does the law of contract and the law of tort differ in relation to pure economic loss? S3 Law of Tort v

14 Psychiatric Illness Question 42: Liability for psychiatric illness is an expanding area of the law. Why do you think that this is the case? It has always been recognised that psychiatric illness may accompany bodily injury and damages for this has always been recoverable. However, cases involving psychiatric illness without bodily injury were more difficult for the courts. Question 43: Claims involving psychiatric illness are subject to the general rules of the law of negligence. What two requirements do the courts have to pay particular attention to? Question 44: To what extent does the law of negligence allow people to recover damages for grief or sorrow? Nervous Shock Cases Question 45: What is nervous shock? Question 46: To succeed in a claim for nervous shock the claimant has to show that they are owed a duty of care by the negligent party. What are the two categories where a duty of care is owed? S3 Law of Tort v

15 Question 47: What were the circumstances in Dulieu v White (1901, which was the first English case where a claim for nervous shock succeeded? Question 48: What did the House of Lords decide in the case of Bourhill v Young (1943)? Question 49: How did Page v Smith (1996) modify the law on Nervous Shock? Secondary Victims During the 20 th Century the law progressed and began to recognise claims from people who suffered shock because of the fear of safety for other people. Question 50: The first case on this point was Hambrook v Stokes Bros (1925). What happened? This now had the potential to open the floodgates. Could anyone who witnessed any accident claim if they suffered nervous shock. The scope of the duty owed to secondary victims was set out in a landmark House of Lords decision from litigation relating to the Hillsborough Football Stadium disaster. S3 Law of Tort v

16 Alcock v Chief Constable of South Yorkshire Police (1992) The South Yorkshire Police were responsible for policing a cup semi-final. They were held to be negligent in allowing an excessive number of supporters into the ground. This led to 96 people being crushed to death and lot more people being injured. In the Alcock case sixteen claimants had not suffered bodily injury and had not personally been at risk. However, they suffered psychiatric illness through witnessing what happened to other people. Question 51: What did the House of Lords Decide? Other Case Law on Psychiatric Illness White v Chief Constable of South Yorkshire Police (1999 Walker v Northumberland County Council (1996) Attia v British Gas plc (1998) S3 Law of Tort v

17 Nuisance There are two main types of nuisance Public Nuisance Private Nuisance Public Nuisance Question 52: What is public nuisance? Question 53: Note at least two examples of public nuisance? Question 54: A good example of where an individual may be able to claim in public nuisance is found in the case of Castle v St Augustine s Links (1992). What were the circumstances of that case? S3 Law of Tort v

18 Private Nuisance Question 55: What interest is protected by Private Nuisance? Question 56: What are the two forms of Private Nuisance? NB: For an action in Nuisance to be actionable there must be damage. The Interference Must be Unreasonable The law of nuisance aims to balance the rights of neighbours. People are allowed to make reasonable use of their land but not use it unreasonably so that it has an adverse effect on others. Question 57: Courts will take account of a number of factors in assessing whether the defendants behaviour is reasonable. Make notes on the following. Continuity S3 Law of Tort v

19 Locality Peculiarities of the claimant Malice Question 58:A young man deliberately eat a tray on a wall and made other noises. He did this in retaliation because of noise coming from next door as a result of piano lessons that his neighbour gave to students. Each neighbour alleged nuisance on the part of the other. What was this case and what was its outcome? Who may sue and who may be sued? Generally, the claimant will be the occupier of the land affected by the nuisance. This may be an occupier owner or a tenant. The defendant is usually the occupier of the property from which the nuisance arises. Question 59: In what circumstances may a landlord be liable in nuisance? Prescription Act 1832 We will cover defences available in tort later in this workbook. However, there is a special defence relating to nuisance claims. S3 Law of Tort v

20 Question 60: What is the special defence available under the Prescription Act 1832? Question 61: a. What were the circumstances in the case of Sturges v Bridgman (1879)? b. What was the decision? c. Can a claim in nuisance be defended on the basis that the claimant came to the nuisance? Question 62: What was decided in the case of Adams v Ursell (1913)? Remedies in Nuisance The usual remedies are damages or an injunction. Question 63: What is reasonable self-help? S3 Law of Tort v

21 Nuisance and Insurance Insurance claims based solely in the tort of nuisance are quite rare. However, they can occur when builders or contractors cause damage to a neighbour s property. Question 64: Make notes on the case of Gold v Patman and Fotheringham (1958). Rylands v Fletcher (1868) The rule in Rylands v Fletcher is an example of strict liability under common law. Question 65: a. What were the circumstances of the Rylands v Fletcher (1968) case? b. Why were the defendants held to be liable despite the fact that the court accepted that they had not been negligent? S3 Law of Tort v

22 For the rule in Rylands v Fletcher to operate there are two essential features: 1. There must be an escape of the thing from the defendant s land 2. There must be non-natural use of the land. Question 66: Note at least three examples of non-natural use of land that may fall under the Rylands v Fletcher rule? Defences to Rylands v Fletcher cases Question 67: If the rule in Rylands v Fletcher applies there is no reasonable care defence. The defences available are very limited. What are they? Breach of Statutory Duty So far, we have been examining torts that arise out of common law. However some torts arise out of statute. There are too many to cover them all but here are a few examples: The Animals Act 1971 Occupiers Liability Acts 1957 and 1971 Health and Safety at Work Act 1974 Consumer Protection Act 1987 S3 Law of Tort v

23 Proving Breach of Statutory Duty Question 68: To succeed in a claim for breach of statutory duty what are the five things that the claimant needs to establish? Employers Liability Employers liability probably contains the most examples of liability arising out of a breach of statutory duty. Question 69: Much of this liability arose out of various Factories Acts which are steadily being repealed. What are they being replaced by? Common Law Duties Question 70: Even if statutory duties did not exist employers do have common law duties to their employees. What are the main examples of these duties? S3 Law of Tort v

24 Vicarious Liability The concept of vicarious liability is most commonly found in Employers liability so we will cover this topic here. Question 71: What is vicarious liability? Liability for Defective or Dangerous Premises In common law there was a higher duty of care owed to people invited onto premises than people who entered the premises through some other right. Also in common law, there was no duty of care to trespassers. Note that in English law liability for defective or dangerous premises is usually placed on the occupier and not the owner of premises. Question 72: How did the Occupiers Liability Act 1957 modify the common law situation? Question 73: What happened in the case of British Railways Board v Herrington (1972) that might find a bit surprising? S3 Law of Tort v

25 Question 74: The principles of the Herrington case were given a statutory form in the Occupiers Liability Act How did this extend the duty of care? Liability for Defective Products This is known as Product Liability. It is another important area from the Law of Torts because there are many claims for injury and damage caused by defective products. When considering these claims it is important to understand the difference between a victim who bought the product and one who did not. Question 75: Complete the grid below? The Victim Can claim for breach of contract Can claim in tort The buyer of the product Yes/No Yes/No Not the buyer of the product Yes/No Yes/No A product liability claim in tort may be brought in Negligence or the Consumer Protection Act S3 Law of Tort v

26 Negligence for Defective Products Question 76: The basic rules of negligence apply. Any person who suffers harm as a result of defective goods can sue. Who can they sue? Question 77: What was the case you have already encountered that established this principle? Consumer Protection Act 1987 Question 78: Proving liability in common law was difficult in some cases. How did the Consumer Protection Act change this? Question 79: When is a product defective according to the Consumer Protection Act? Question 80: What is the state of the art defence? S3 Law of Tort v

27 Defamation We will be covering the two forms of defamation. - Libel and Slander. Question 81: How is defamation defined? Question 82: Does there need to be malicious intent for a statement to be defamatory? Libel Question 83: What is libel? Question 84: What happened in the case of Monson v Tussauds 1900?. Question 85: What did the Defamation Act 1952 include in the law of libel? Question 86: What did the Theatres Act 1968 include in the law of libel? Note: In very serious cases libel can be a crime as well as a tort. S3 Law of Tort v

28 Slander Question 87: What is slander? Note: Unlike libel, slander in itself cannot be a crime as well as a tort although spoken words may constitute another crime such as blasphemy or sedition. Actionable per se? Question 88: Does damage have to be proved for a case of defamation to succeed? Question 89: In the case of slander, what are the four cases where damage is presumed to have occurred? Essentials of Defamation Question 90; What are the four elements that must be present for an action in defamation to succeed? S3 Law of Tort v

29 Defences available in the tort of defamation Question 91: What defences are available in the tort of defamation? Self Defence General Defences in Tort Question 92: The law allows us to use reasonable force in defence of what? Question 93: Reasonable force can be used to prevent a crime. Self-defence is also a good legal defence for intentional torts against the person note some examples Necessity In effect this is a plea that the act alleged to be a tort was carried out to prevent something even worse form happening (a greater evil). Question 94: In the case of Leigh v Gladstone (1909) prison staff were sued by battery by a prisoner when they force fed her after she went on a hunger strike. What was the outcome of this case? S3 Law of Tort v

30 Statutory Authority This is a plea that the act alleged to be a tort is permitted by Statute. Question 95: The case of Allen v Gulf Oil Refining Ltd (1981) is an example of the defence of statutory authority. Make a brief note about this case. Question 96: Why is it unlikely that statutory authority will be a defence in negligence? Act of God This is probably one of the misunderstood defences and is often described wrongly by lay people. Question 97: What is an Act of God? Question 98: In the case of Nicholls v Marsland (1870) why did the Act of God defence succeed in a claim under the Rylands v Fletcher rule? Note The Nicholls case is the last case where the defence succeeded and it may now be obsolete as a defence. S3 Law of Tort v

31 Consent The defence works along the lines that the plaintiff agree to a deliberate act of the defendant which would have been a tort if that consent had not been given. Question 99; Give two examples of consent. Volenti non fit injuria This means no legal wrong can be done to a person who consents. Question 100: This is subtly different to the defence of consent. How does it differ? Contributory Negligence Technically this is not a defence but is used as a plea in mitigation. Question 101: What was the effect of the Law Reform (Contributory Negligence) Act 1945? S3 Law of Tort v

32 Res Ipsa Loquitur This is a rule of evidence that applies in some cases. Question 102: What does res ipsa loquitur mean? Limitation of Actions Victims of torts have a limited amount of time to begin their legal actions against wrongdoers. Question 103: The limitation periods are governed by the Limitation Act 1980 as amended by the Latent Damage Act What are the main limitation periods? Question 104: When do these limitation periods start to run? Question 105: A victim of a tort suffers a serious injury that leaves him in a coma for 3 years. Because of this disability he is unable to pursue his claim against the tortfeasor (wrongdoer), In this case, when doe the 3 year limitation period start? S3 Law of Tort v

33 Latent Bodily Injuries There are some situations where a victim may contract an illness or injury but be unaware of it at the time. Question 106: A common example of this is asbestos related illnesses. Victims do not become ill until same time after exposure to asbestos. This can 30 years to manifest itself. In this situation when would the limitation period run from? Latent Property Damage A similar principle applies to that described under latent bodily injuries. For example, a neighbours tree roots may cause subsidence bit this may not be realised for many years. The 6 year limitation period runs from the date of damage or the date it is discovered. Remedies in Tort The award of damages is the most common remedy in tort and is a Common Law remedy. However, there are a number of other remedies that arise out of Equity we will look at one of these here (injunctions). Question 107: A number of remedies are shown in the chart below. Make notes on each of them. Damages Special Damages: General Damages: S3 Law of Tort v

34 Aggravated Damages: Exemplary Damages: Nominal Damages: Contemptuous damages: Injunctions S3 Law of Tort v